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Can US warrants reach into servers located overseas? Microsoft says no

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In a case that could have big implications for privacy rights and U.S. tech companies, Microsoft(s msft) is challenging the federal government’s ability to use search warrants to obtain customer emails hosted on a server in Ireland.

According to Microsoft, the decision by a magistrate judge in December to wrongfully extends U.S. law enforcement power overseas. The software giant says the magistrate’s ruling is like granting a search warrant “allowing federal agents to break down the doors of Microsoft’s Dublin facilities.”

Last week, the company asked a federal court in New York to scrub the part of the warrant, related to a drug-trafficking investigation, that allows the government to carry out a search on foreign territory. In the filing, reported by the Washington Post, Microsoft suggested that the U.S. should instead rely on its a legal assistance treaty with Ireland to retrieve the emails located in Dublin.

The magistrate judge has so far rejected Microsoft’s arguments about overseas searches as “deceptively” simple, and relied instead on a technical argument that a search did not really take place overseas since the content of the emails was only read in the U.S. The judge also rejected the idea of relying on a treaty with Ireland, suggesting to do so would be “burdensome.”

For Microsoft, more is at stake than just legal principles. The company is trying to reassure overseas customers who are skittish about U.S. surveillance practices that it can protect their privacy. (Microsoft, Google(s goog) and others will also be addressing these issues at Gigaom’s Structure event in San Francisco next week).

Verizon(s vz) is also supporting Microsoft’s effort to curtail the warrant. In a friend-of-the-court brief, the telecom giant warned that overly broad search rules in the U.S. could cost companies there billions in lost revenue, and pointed to European backlash over the discovery that the Belgium-based banking consortium SWIFT had been illegally sharing customer data with the U.S.

The Justice Department, for its part, is warning that changing the search warrant rules could permit criminals to thwart investigations by falsely declaring themselves to be residents of Europe.

A ruling is likely to come in coming weeks.

Microsoft’s challenge over the Dublin emails comes one month after the company won an unrelated court victory when it defeated the FBI’s attempt to use a gag order to prevent Microsoft from disclosing an investigation to an Office 365 customer.

8 Responses to “Can US warrants reach into servers located overseas? Microsoft says no”

  1. Seriously this is sweet MS is doing the right thing. As for the rest? Earth = hah. Treaties mean nothing, Subpoenas mean nothing, Warrants mean nothing, its all a bunch of words that is supported by current “fabric”. Indeed as much as future comments may dis-imply i’m living in the same world as you…. Welcome to reality. All this is equiv to kids in a sandbox bickering over rules that were invented by kids in a sandbox. Everything you know about the legal system is a farse based on the ideals some arbitrary person invented that everyone else happened to get onboard. Just say NO to the FBI orSandBox[i] or any other human being (group) with claim-ed power of authority. Respect is earned, not given through sandbox evolved stupid human tricks/backdoors/workarounds/authority-of-paper/authority-of-other-stupid-human-tricks-such-as-government. Simple solution: no one is coming after you….tell them to F off, end of story. Stop worrying, we are in control. Those grey-heads who argue will be truncated, end of story.

  2. Nate Fredricksen

    So, if such a ruling ends up occurring and being upheld, would that mean then from this precedent, data servers would be the new swiss bank-accounts? Tech companies with clouds and such could just…put all their servers in little island-countries with no treaty agreements…and poof…everything they (and you as their customers) do is safe from government intrusion…and effectively, almost impossible to prosecute for just about anything done over those servers?

    • JenniferDawn

      y’know…that’s actually a Brilliant Idea! It would have to be a small place, yet it would have to have good cabling infrastructure (or microwave, or something).

      The only issue would be if the NSA dug up the cable just ourside your national border…hmm.